Drive to choose Texas judges on merit intensifiesMonday, March 2, 2009
By RANDY LEE LOFTIS and RYAN McNEILL / The Dallas Morning News
When the Texas Supreme Court considered 60-year-old James Steven Brite's age discrimination lawsuit against his ex-employer, insurance giant USAA, the courtroom wasn't just full of lawyers. It was also filled with political money.
The interests aligned against Brite, from USAA to some of the state's most powerful business groups, had given more than $1 million to the court's nine justices since 2000 for their partisan campaigns.
Brite – whose small-shop lawyers had donated a mere $14,000 to the justices since 2000 – lost his case in 2007 when the state's highest court overturned two lower-court decisions in his favor.
In hundreds of such cases involving big campaign donors, the same question arises: Is justice for sale? As the U.S. Supreme Court prepares to hear oral arguments on that question Tuesday in a West Virginia case, Texas Supreme Court Chief Justice Wallace Jefferson maintains that money doesn't rule Texas courts.
He acknowledges, however, that the public doesn't believe it.
"If you poll the public, they have this idea that a judge is going to be more inclined to render a judgment for a contributor than for a noncontributor," Jefferson said in an interview. "Every poll that's been taken on that bears out that public perception."
So Jefferson has joined Texas jurists going back 50 years by calling for a switch to merit selection of judges. Although 39 states have some form of judicial elections, Texas is among just nine that elect judges by political party.
OppositionMerit selection has passed the Senate three times in past sessions but never overcame opposition from former House speakers Pete Laney and Tom Craddick. With new Speaker Joe Straus in charge in the House, that might change.
Under a proposal by Sen. Robert Duncan, R- Lubbock, the governor would appoint appellate judges and the Senate would confirm them. At the end of a judge's term, voters would cast yes or no votes on whether to keep the judge in office. District judges – the local trial judges – would still run by party, as they do now.
Duncan said he might tweak the plan by providing for one partisan election for each appellate judge after appointment, with retention votes by the public after that. The goal is to maintain voters' right to choose their judges while reducing the "character assassination" that justices elected statewide often endure in big-money contests, Duncan said.
The change would not eliminate politics; governors are politicians, and groups could still run ads praising or targeting a judge. Still, Duncan and the chief justice said it would boost trust in judicial integrity.
"I think that's the biggest problem, when the public is cynical about the rule of law and about its application," Jefferson said.
Campaign finance reports underscore money's role in choosing Texas judges. The nine current Texas Supreme Court justices, all Republicans, have raised $11.8 million since 2000, the first year for which campaign finance reports are available online, for supposedly low-key and dignified races that seem increasingly shrill and partisan.
The money comes mostly from lawyers, including some who practice before the court, and from corporations, some with pending cases.
In a detailed study, the Austin-based liberal watchdog group Texans for Public Justice found that the justices' donors were more successful than nondonors in persuading the court to hear their appeals, a crucial first step in winning a case. The study did not compare donations with cases' final outcomes.
'Payola justice'Texans for Public Justice has opposed what it calls "payola justice" since the group's founding in 1997, executive director Craig McDonald said. He welcomed Jefferson's call but hears little response.
"We applaud Jefferson," McDonald said. "He took the first step. But I don't see where the second step comes from." McDonald said Jefferson's proposal, detailed in his annual State of the Judiciary speech on Feb. 11, "was met with deafening silence by our state's top leaders."
Merit-selection supporter Thomas R. Phillips, chief justice from 1988 to 2004, said political inertia, entrenched party politics and the influence of consultants who make money from campaigns had blocked reform.
Phillips said he thinks most donors just want judges with a preferred philosophy. "And with most judges, that's all you're going to get," he said.
"The judges truly don't remember who the lawyers were, most of the time and in most of the cases," Phillips said. "I know nobody believes that, but at least that was my experience."
Few judges could testify about the role of money more authoritatively than Jefferson. Since Gov. Rick Perry appointed him to fill a vacancy in 2001, he's trumped all other Texas judges at political fundraising: $2.8 million, mostly from law firms and corporations.
Conflicts of interestJefferson said he knows how it might look for a judge to preside over a big donor's case. As long as judges are elected, he said, apparent conflicts of interest are unavoidable.
"At my level, we run statewide races," Jefferson said. "And the contributions come from a large sector of the legal profession and from many other interest groups and individuals. If we were to recuse [ourselves] in every instance in which someone contributed to our campaigns, justice would come to a halt."
A West Virginia justice's refusal to bow out of an appeal by his biggest political backer is the subject of a case before the U.S. Supreme Court this week. Like Texas, West Virginia elects judges in partisan races.
The case arose from a lawsuit over a collapsed business deal between two coal mine operators. Hugh Caperton won a $50 million jury verdict from A.T. Massey Coal Co. in 2002.
As Massey prepared its appeal to West Virginia's Supreme Court of Appeals in 2004, Massey CEO Don Blankenship spent $3 million to support Republican lawyer Brent D. Benjamin against a Democratic incumbent justice. Blankenship's ads accused the incumbent of releasing a child-rapist and of being a "radical."
Benjamin won the election and later, after twice refusing to recuse himself, cast the deciding vote in Massey's favor.
Caperton went to federal court, arguing that Benjamin's refusal to recuse himself despite Blankenship's massive spending – accounting for more than 60 percent of Benjamin's financial support – violated Caperton's 14th Amendment due process rights.
Massey counters that Caperton did not prove any bias and that a recusal is only required when a judge has a direct financial stake in a case.
The U.S. Supreme Court could find that political money causes justice no harm, or that partisan judicial elections are inherently unconstitutional – an improbable outcome, observers say. Texas legal interests are watching closely.
'The bottom line'"I don't think they're going to abolish the Texas judicial system," said McDonald of Texans for Public Justice, which filed a brief in the case. "What we want them to do is at least tell us where the bottom line is. It may force Texas to change some of its rules, or to face a lot of recusal motions."
But as for major change, McDonald said, "I'm not holding my breath."
SOURCE: Texas Ethics Commission